Excerpt:.....- interlocutory order by election tribunal - without jurisdiction - prejudicial to interest of winning candidate and of electorate - election tribunal has no power to review its decision - refusal by court to interfere will lead to injustice - held, high court can interfere. - - it involves an important question of law--namely, whether a tribunal constituted under section 86 of the representation of the people act, 1951 (hereinafter called the act) has the power to review its orders like a civil court under section 114 read with order 47, rule 1 or section 151, civil p. he further complained that his application for a recount was illegally rejected. if an interlocutory order is shown to be without jurisdiction and the court thinks that refusal to interfere will materially..........had been invalidly rejected and a large number of invalid votes had been counted in favour of the winning candidate (brij mohan lal the petitioner before us). he also alleged that there was 'foal play in counting of ballot papers' due to the influence of the brother of the winning candidate who was the nazir in the collectorate. he further complained that his application for a recount was illegally rejected. he claimed to have secured more votes than the winning candidate (brif mohan lal the petitioner before us). he asked for two reliefs--(1) that the election of the winning candidate be declared void and (2) he be declared as duly elected from the 302 banda constituency. 2. an election tribunal was appointed to try the petition and notice was issued to the respondent brij mohan lal.....

Judgment:

Dhavan, J.

1. This is a petition under Article 226 of the Constitution filed by a respondent in the election petition which is pending against him. It involves an important question of law--namely, whether a Tribunal constituted under Section 86 of the Representation of the People Act, 1951 (hereinafter called the Act) has the power to review its orders like a Civil Court under Section 114 read with Order 47, Rule 1 or Section 151, Civil P. C. The facts are these. The petitioner Sri Brij Mohan Lal and the respondent Shankar Lal along with five other candidates contested the election to the Uttar Pradesh Legislative Assembly from 302 Randa Assembly Constituency in the general election of 1962. The polling took place on 25th February 1962 and the result was declared on the same day. The petitioner secured 9173 votes against the respondent Shanker Lal's 8903 and was elected by a majority of 270 votes. The votes of the other five candidates were respectively 5218 (Praja Socialist Party), 3109 (Ram Raj Parishad), 1575 (Communist Party), 1300 (Jan Sangh) and 772 (Independent). Thus the vote was very close and the petitioner obtained a little more than the one-third of the total votes polled.

The respondent Shanker Lal filed a petition under Section 81 of the Act challenging the petitioner's election on various grounds including a charge that the petitioner was guilty of corrupt practices. He also alleged that the counting of votes was defective as a result of which a large number of village votes of the election petitioner (respondent before us) had been invalidly rejected and a large number of invalid votes had been counted in favour of the winning candidate (Brij Mohan Lal the petitioner before us). He also alleged that there was 'foal play in counting of ballot papers' due to the influence of the brother of the winning candidate who was the Nazir in the Collectorate. He further complained that his application for a recount was illegally rejected. He claimed to have secured more votes than the winning candidate (Brif Mohan Lal the petitioner before us). He asked for two reliefs--(1) that the election of the winning candidate be declared void and (2) he be declared as duly elected from the 302 Banda Constituency.

2. An Election Tribunal was appointed to try the petition and notice was issued to the respondent Brij Mohan Lal (the petitioner before us), and he filed on 14th July 1962--within the prescribed period of fourteen days--a notice of recrimination under Sac. 97 of the Act. This notice was accompanied by a statement including particulars of corrupt practices alleged to have been committed by the election petitioner during the election. It is common ground that the statement did not include the ground under Section 100(1)(d)(iii) or (iv) of the Act. On the same date the petitioner before us filed a written statement in reply to the election petition.

3. After the framing of issues the election petitioner Shanker Lal (respondent before us) applied for the amendment of his petition by including a list of votes alleged to have been cast in his favour but wrongly rejected and a list of votes alleged to have been wrongly counted for the winning candidate and also another list of votes alleged to have been wrongly counted in favour of the other losing candidate. This application was allowed by the Tribunal on 17th December 1962 and the election petitioner amended his petition accordingly.

Thereupon, the winning candidate Brij Mohaa Lal (petitioner before us) after inspecting the ballot paper made an application for the amendment of his recriminatory statement so as to include the allegation that numerous votes cast in his (winning candidate) favour were wrongly rejected and several votes cast in his favour were counted as votes in favour of other candidates and several invalid votes were wrongly counted in favour of the election petitioner. He also filed an additional written statement for this purpose. This application was opposed by the election petitioner on the ground that the winning candidate was seeking to add new grounds in the recriminatory statement. After hearing both sides and discussing case law with regard to the scope of Section 97 the Tribunal rejected the objection of the election petitioner to the additional written statement. This order is dated 2nd January 1963.

4. The election petitioner then filed an application for the review of the aforesaid order on the ground that it was in conflict with the decision of the Supreme Court in Bhim Sen v. Gopali, 22 Ele. L. R. 288 (S C). The application for review was opposed by the winning candidate Brij Mohan Lal (the petitioner before us) and after hearing the parties and once again considering the case law on the subject, the Tribunal rejected the review application and allowed the amendment of the statement and particulars in the notice of recrimination. But on 9th February 1963 it reviewed its two previous orders dated 2nd January and 24th January and came to the conclusion that the objection of the election petitioner to the additional written statement must prevail. Accordingly it directed that the additional pleas in the written statement be struck off. Against this order the petitioner has come to this Court for relief under Article 226.

5. Learned counsel for the petitioner Brij Mohaa Lal (respondent in the election petition) urged two points in support of this petition--first, that the Tribunal had no jurisdiction to review it previous decision and therefore its order dated 9th February 1963 is a nullity; secondly the order is based on a patent misinterpretation of Section 97 of the Act and erroneous on the face of it. On the other hand counsel for the respondent contended that the Tribunal had inherent power to correct any error in its previous order; secondly this Court should not interfere with an interlocutory order and leave the error if any to be corrected in appeal; thirdly the order dated 9th February 1963 is based on a correct interpretation of Section 97; lastly, even if it is erroneousthe error is not so apparent as to justify an interference under Article 226 simply bee use this Court is inclined to the alternative view. We shall now consider these arguments in detail.

6. The first question is whether this Court should interfere with an interlocutory order. Counsel for the respondent (petitioner in the election petition) relied strongly on the observation of the Supreme Court in Veluswami Thevar v. Raja Nainar, 17 Ele. L. R. 181 : (AIR 1959 S C 422) that the objection of providinga right of appeal under Section 116-A of the Act is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should be set right in an appeal under that section. In this view, it would be proper exercise of discretion under Article 226 to decline to interfere with interlocutory orders. The Court laid down a principle of sen-restraint, and advised the High Court not to correct any error in an interlocutory order until the matter comes before it in appeal.

But an error in a decision is not the same thing as a decision without jurisdiction. If an interlocutory order is shown to be without jurisdiction and the Court thinks that refusal to interfere will materially prejudice the aggrieved party to such an extent as to make the petition virtually infructuous, it may be necessary to interfere--indeed, the principle of expeditious disposal may be better served by interference. Rules of self-restraint are intended to be servants of the Court and cannot be permitted to become its masters like the laws of the Medes and the Persians. In Madan Gopal v. State of Orissa, AIR 1952 S C 12 the Supreme Court observed that there are only two limitations on the powers of interference of a High Court under Article 226--both of a territorial nature.

7. We have to consider whether it is desirable to interfere with the order of the Tribunal dated 9th February 1963 at this stage--assuming that it is found to be without jurisdiction. Rut that order revised its two previous decisions and rejected the application of the petitioner (respondent in the election petition) to amend and amplify the notice of recrimination. Therefore, if this order is quashed the two previous orders will stand. Let us assume that both these orders are based on a wrong interpretation of Section 97 of the Act. The result will be that the winning candidate Brij Mohan Lal (the petitioner before us) will be permitted to produce evidence which he may not be entitled to.

In that case, the petitioner in the election petition can have the error rectified in appeal and ask this Court to ignore this evidence and decide the petition as if that evidence had not been given at all. But if the order of 9th February 1984 is not set aside the winning candidate will not be permitted to lead any evidence in support of the grounds excluded by the order and must wait till the stage of appeal. In that event if this Court in appeal holds the order to be without jurisdiction and the previous two orders correct in law, the case must be remanded to enable the winning candidate to lead evidence which was illegally excluded. By that time the term of the present assembly may be hearing its end. Thus the balance of convenience is in favour of interference now because it will advance and not hinder the principle of expeditious disposal, whereas refusal may irretrievably prejudice the interests of the winning candidate--and of the electorate. We are,.therefore, of the opinion that the observations of the Supreme Court lay down a rule of caution and self-restraint and advised the High Courts not to interfere with interlocutory decisions on merits but were not intended to restrain the High Court from interfering with orders clearly without jurisdiction where refusal will result in injustice.

8. The next question is whether the order of 9th February is without jurisdiction. It is commonground--and conceded by counsel for the respondent before us (petitioner in the election petition) that the Tribunal by this order reviewed and set aside its earlier orders and rejected the application of the winning candidate (petitioner before us) to amend and amplify his statement accompanying the notice of intention to recriminate. The simple question is whether an Election Tribunal constituted under Section 86 of the Act has the power to review an earlier decision After hearing learned counsel for both sides at some length and reviewing the case law on this point we have come to the conclusion that it has not.

9. An Election Tribunal constituted under Section 86 of the Act is not a Court: it is a creature of statute. 'An election contest is not an action at law or a suit in equity but is a purely statutory proceeding un-known to common law and the Court (the Tribunal) possesses no common law power'--K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 S C 687 (693). Therefore an Election Tribunal has only such powers as are conferred on it by statute--expressly or by necessary implication. It has none of the inherent powers of an ordinary Court.

10. Learned counsel for the respondent Shankar Lal (petitioner in the election petition) contended that Section 90 of the Act enjoins that 'every election petition shall be tried by the Tribunal, as nearly as may be in accordance with the procedure applicable under the Civil P. C. to the trial of suits', and therefore it confers on the Tribunal by implication all the powers of a Court under that Code, including the power under Section 114, Order 47, Rule 1 and Section 151, Civil P. C. to review in the interest of justice any previous order or decision. This argument is based upon a failure to distinguish between procedure and power. The Supreme Court in Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa, AIR 1958 S C 698 emphasised this distinction and pointed out that Section 90 of the Act provides for the procedure for the trial of election petition by the Tribunals. To quote the exact words of the Supreme Court:

''It provides for the examination of witnesses, the rules of evidence to be followed, the joinder of candidates not already respondents as respondents and the amendment or amplification of particulars of a corrupt practice already alleged in the petition. The powers of a Tribunal are, however, separately dealt with in Section 92 which enacts that the Tribunal shall have the powers which are vested in a Court under the Civil P. C. when trying a suit in respect of the following matters : (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses, and may summon and examine suo motu any person whose evidence appears to it to be material; and shall be deemed to be a civil court within the meaning of Sections 480 and 482 Criminal P. C. It will be noticed that the procedure for trial before the Tribunal and the powers of the Tribunal are treated separately thus distinguishing between the procedure to be followed by the Tribunal and the powers to be exercised by it.'

11. After reviewing the various sections of the Act it observed. 'The effect of all these provisions really is to constitute a self contained Code governing the trial of election petitions and it would appear that in spite of Section 90 (1) of the Act, the provisions of Order 23, Rule 1 Civil P. C. would not be applicable to the trial of election petitions by the tribunals.' The Supreme Court in that case held that the Tribunal has no power to permit the withdrawal of a petition orany part of the petition so as to deprive another person of his right to continue the proceedings in spite of the petitioner's desire to withdraw. But the principle is of general application and has been extended to exclude other powers conferred on ordinary courts. In Brij Bhushan v. Raja Anand Brahma Shah, A. I. R. 1961 All 356, a Division Bench of this Court (M. C. Desai and S. N. Sahai Jt.) held that the powers of an Election Tribunal appointed under the Act or enumerated in Section 92 did not include the power to examine a party under Order X, Rule 2 of the Civil P. C. In Udal v. Lal Bahadur, 21 Ele L R 180 (All) another Division Bench of this Court (A. P. Srivastava and J. N. Takru JJ.), following the principle laid down by the Supreme Court in AIR 1958 S C 698 cited above also held that the tribunal did not have the power to examine a party under O. X, R. 2 Civil P. C.

In Rameshwar Dayal v. Sub-Divisional Officer, ILR (1961) 2 All 298 : (AIR 1963 All 518) (M. C. Desai C. J. and Dwivedi J.) held that Section 116-A(2) of the Act makes a clear distinction between powers or jurisdiction or authority and procedure and that procedure does not include power or jurisdiction or authority. The learned Judges held that the Tribunal had no power to issue an injunction as an injunction 'is a matter of power and not of procedure'. Following these decisions we are of the opinion that reviewing a decision is a matter of power and not of procedure. Indeed this principle is now settled beyond doubt by a very recent pronouncement of the Supreme Court in Laxman Purshottam v. State of Bombay, AIR 1964 S C 436. Their Lordships observed

'when an authority exercises its revisional powers it necessarily acts in a judicial or quasi-judicial capacity. Therefore the Government's order of 1946 must be deemed to be a judicial or a quasi-judicial order. Such an order cannot be set aside or revised or modified just as an administrative order can be ..... finality attaches to the Government's order .... in the absence of any express provision empowering it to review the order, we are clear that the subsequent order made by the Government on May 2, 1947 is ultra vires and beyond its jurisdiction.'

12. Learned counsel for the respondent before us (the petitioner in the election petition) contended that every judicial tribunal has the implied power to correct its own errors and he relied on a decision of the Madhya Pradesh High Court (Hidayatullah C. J. and Choudhri J.) Sunderlal v. Nandramdas, AIR 1958 Madh Pra 260 in which it was observed that the inherent powers which every Civil Court exercises are vested in the Tribunal (constituted under the Representation of the People Act). In that case the question before the Court was whether an Election Tribunal has the power to restore proceedings dismissed by it ex debito justitiae. With great respect, the view of the learned Judges is based on an assumption that such an Election Tribunal is a Court--a view which was subsequently negatived by the Supreme Court in AIR 1958 S C 698 cited above.

Learned counsel then argued that every tribunal must have the power to correct clerical errors and this power should be extended in the interests of justice to other kinds of errors. There is a short answer to this argument. In the case of a clerical error, the mind of the Tribunal does not go with the supposed decision, therefore in the eyes of law it is deemed never to have been made. The principle of non est factum will apply and in correcting the error the Court is really replacing a supposed error by a real decision.

But no question of non est factum arises when a decision is made by the Tribunal on merits after applying its mind to the controversy, and its order is final subject to any appeal by a higher Tribunal oror review by the same Court. But the power of review whether by the appellate court or the court which made the decision must be conferred by statute. An appeal is really a review for both require the exercise of essentially the same kind of power--namely, to reconsider a previous decision and this power may be exercised either by the same Court or a higher Court in appeal. Therefore if a right of appeal has to be conferred by statute so has the power of review.

13. Learned counsel then argued that a power of review is essential to correct errors which might otherwise lead to a miscarriage of justice and the absence of such a power will lead to great hardship in many cases. We are not impressed with this argument. Even the right of appeal has to be conferred by statute and it is not uncommon for the Legislature to create a tribunal with the power to make judicial or quasi-judicial decisions from which there is no appeal and which cannot be challenged in the-civil Courts. It can be argued with equal force that the absence of a right of appeal leads to injustice-in many cases. But the question whether the judicial decisions or orders of a tribunal created by statute should be final, or subject to review by an appellate authority or by the tribunal itself or both is one of policy to be decided by the Legislature when enacting the statute.

14. Learned counsel then contended that this Court should not interfere with an order passed in excess of jurisdiction if it set aside a previous order which was manifestly illegal. He argued that the previous orders of the tribunal permitting the winning candidate to add new grounds in his recriminatory statement was illegal on the face of it and the subsequent order of 9th February corrected an illegality; therefore this Court should not interfere. Now it is true that the power of this Court under Article 226 is discretionary and it may refuse to interfere with an order without jurisdiction in the interests of justice. Azizun Nisa v. Assistant Custodian, (S) AIR 1957 All 561. But in the present case it is by no means certain that the previous two orders of the tribunal are illegal. Mr. S. N. Kakkar learned counsel for the petitioner (respondent in the election petition) argued that the limitation of 14 days applies only to the notice of recrimination and the furnishing of security but not the statement which must accompany the notice under Sub-section (2) of Section 97.

He relied upon a number of decisions under the Civil P. C., the Income-tax Act, and the Sales Tax Act in which it was held that any limitation prescribed for something to be done did not extend to some other act accompanying it. It is not necessary for us to give any final opinion on the rival contentions except to say that two alternative views are possible. Counsel for the respondent contended that after the recent decision of the Supreme Court in labar Singh v. Genda Lal (unreported) (since reported in AIR 1964 S C 1200) there can be no doubt that the statement accompanying a notice under Section 97 must be filed within 14 days, A copy of the Supreme Court's judgment was given to us but after examining it care-fully we cannot agree that the Court decided the point in controversy before us. In that case no notice of recrimination was served at all whereas in the present case it was served. Learned counsel relied on the following observation of the Supreme Court is this judgment :

'Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. Theresult of Section 97(1) therefore, is that in dealing with a composite election petition, the tribunal enquires into not only the case made out by the petitioner, but also the counter claim made by the returned candidate. That being the nature of the proceedings contemplated by Section 97(1) it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by Section 97(1) proviso and Section 97(2). If the returned candidate does not recriminate as required by Section 97 then he cannot make any attack against the alternative claim made by the petitioner.'

15. We do not think that this passage necessarily means that the Supreme Court held that the returned candidate loses his right to lead evidence if the notice to recriminate is not accompanied by a statement under Sub-section (2) of Section 97. As stated above, in the case before them no notice under Section 97 had been served at all. Learned counsel for the petitioner contended that the Supreme Court could not have intended that even after the petitioner in the election petition has amended the petition and added new particulars the counter-petitioner should be deprived of his right to amend his statement. He also argued that the tribunal had acted illegally in allowing the election petitioner to add new grounds in his petition after the expiry of the period of limitation. We do not make any comment on the merits of these arguments except to say that they may be urged before this Court when the matter comes up in appeal.

16. Learned counsel for the respondent (the election petitioner) then suggested that we should decide this point finally ourselves and direct the tribunal to try the case in accordance with our decisions. We confess that the suggestion is tempting, tenable, but there are serious objections against it. If we decide this point we shall have decided a part of the appeal in advance and this we are disinclined to do. Our decision will be binding on the appellate Bench unless it disagrees with it and refers the matter for reconsideration by a larger bench thereby prolonging the hearing of the appeal. We think it is proper that the entire appeal including all points of law and jurisdiction should be decided by the bench bearing the appeal if and when it is filed.

17. For reasons explained above, we are of the opinion that the order of the election tribunal dated 9th February 1963 reviewing its previous decision is without jurisdiction and must be quashed. We set aside that order and direct the tribunal to proceed with the case exactly as if that order had not been passed. As the impugned order was passed by the tribunal suo motu we think it is just and proper that the parties should bear their own costs of these proceedings.